FOIA COMMENTARY BY ACCESS REPORTS

IV. ANALYSIS

Q. Definition of Agency

Text:

(f) For purposes of this section the term --

(1) "agency" as defined in section 551(1) of this title includes any executive department, military
department, Government corporation, Government controlled corporation, or other establishment
in the executive branch of the Government (including the Executive Office of the President), or any
independent regulatory agency; and

(2) "record" and any other term used in this section in reference to information includes any
information that would be an agency record subject to the requirements of this section when
maintained by an agency in any format, including an electronic format.

Discussion:

The definition of "agency" is extremely important for it determines those entities within the executive
branch of the federal government to which the FOIA (and, as a result of its incorporation of this definition,
the Privacy Act) applies. It was not a defined term prior to the 1974 Amendments, and the House of
Representatives (whose revision of this amendment was adopted in conference) made it clear that the intent
of the definition was to expand the FOIA's scope to

include those entities which may not be considered agencies under section 551(1) of title 5 U.S. Code, but which perform
governmental functions and control information of interest to the public. The bill expands the definition of "agency" for purposes
of section 552, title 5, United States Code. Its effect is to insure inclusion under the Act of Government corporations, Government
controlled corporations, or other establishments with the executive branch, such as the U.S. Postal Service. The term
"establishment in the Executive Office of the President," as used in this amendment, means such functional entities as the Office
of Telecommunications Policy, the Office of Management and Budget, the Council of Economic Advisors, the National Security
Council, the Federal Property Council, and other similar establishments which have been or may in the future be created by
Congress through statute or by Executive order. The term "Government corporation," as used in this subsection, would include
a corporation that is a wholly government-owned enterprise, established by Congress through statute, such as the St. Lawrence
Seaway Development Corporation, the Federal Crop Insurance Corporation (FCIC), the Tennessee Valley Authority (TVA), and
the Inter-American Foundation. The term "Government controlled corporation," as used in this subsection, would include a
corporation which is not owned by the federal government, such as the National Railroad Passenger Corporation (Amtrak) and the
Corporation for Public Broadcasting (CPB).

Source Book II at 128-29.

The Conference Report further clarified what was meant by the inclusion of the Executive Office of the
President:

With respect to the meaning of the term "Executive Office of the President," the conferees intend the result reached in Soucie v.
David, 448 F.2d 1067 (D.C. Cir. 1971). The term is not to be interpreted as including the President's immediate personal staff or
units in the Executive Office whose sole function is to advise and assist the President.

Source Book II at 232.

Despite the fact that the legislative history quoted above refers expressly to the Council of Economic
Advisors as an example of an entity within the Executive Office of the President which was to be defined
as an agency, the D.C. Circuit held that it was not an agency. Rushford v. Council of Economic Advisors,
767 F.2d 1038 (D.C. Cir. 1985). The court based this decision on its belief that the language in the House
Report had been superseded by that in the Conference Report so that the proper test was a functional one
based on Soucie v. David, supra. Thus, the Council was not an agency because its sole function is to advise
and assist the President.

The D.C. Circuit also found that the Vice President's Task Force on Regulatory Reform, later renamed
the Council on Competitiveness, was not an agency because its sole function was to advise the President
and Vice President. Although the majority could point to no conclusive evidence that substantiated this
proposition, it found that as a matter of practical politics such an entity played an advisory role. A dissenting
judge pointed out that the Task Force had been created by Executive order and had administrative support
functions and that, no matter what it appeared to have been used for, it had been created as if it were an
agency. Meyer v. Bush, 981 F.2d 1288 (D.C. Cir. 1993).

The Clinton administration took the position, based on language in the D.C. Circuit's second opinion in
Armstrong v. Executive Office of the President, 1 F.3d 1274 (D.C.Cir. 1993) -- a case dealing with, among
other matters, to what extent the records of the National Security Council were agency records subject to
the Federal Records Act, or presidential records subject to the Presidential Records Act -- that the NSC
could not be both an agency and an advisory body to the President; it chose to consider itself solely an
advisory body to the President and, through an Executive order, declared itself no longer subject to the
FOIA. However, the order said the agency would continue to disclose information along the lines of the
FOIA. The case was then heard by the D.C. Circuit, which ruled that the NSC is not an agency subject to
FOIA. Armstrong v. Executive Office of the President, 90 F.3d 553 (D.C. Cir. 1996).

Since this definition was intended as an expansion of the previous definition which had developed through
judicial interpretations of 5 U.S.C. §551(1), it does not affect previous decisions holding that an entity was
an agency for FOIA purposes. Any pre-1974 decision holding that an entity was not an agency, however,
would have to be examined to see whether the result was affected by the amendment.

Certain characteristics have been defined which an entity must be found to possess before it will be held
to be an agency. The most important of these is that the entity must have the "authority in law to make
decisions." Washington Research Project v. HEW, 504 F.2d 238, 248 (D.C. Cir. 1974). Accord, Forsham
v. Harris, 445 U.S. 169 (1980); NLRB v. Sears, Roebuck & Co., 421 U.S. 168 (1975); Rocap v. Indiek, 539
F.2d 174 (D.C. Cir. 1976); Soucie v. David, supra. Even this fact, however, is not always determinative.
Public Citizen Health Group v. HEW, 668 F.2d 533 (D.C.Cir. 1981).

An entity may receive funds from the federal government and even perform work for it, without becoming
an agency. In St. Michael's Convalescent Hosp. v. State of Cal., 643 F.2d 1369, 1379 (9th Cir. 1981), the
court rejected the argument that "the federal funds received through the Medicaid program and Medicaid's
pervasive statutory and regulatory scheme necessarily" transformed the recipient state agencies into federal
ones for purposes of the FOIA. The court relied on Forsham v. Harris, supra, to hold that there must be
extensive control by the grantor agency over the recipient's day-to-day operations before it could be
transformed into an agency.

This question of control has also been emphasized by the same court in holding that the American Red
Cross was not an agency. "It is the existence of this element of substantial federal control that distinguishes
those entities that can be fairly denominated as federal agencies under the FOIA from the organizations
whose activities may be described as merely quasi-public or quasi-governmental." Irwin Memorial, Etc. v.
American Red Cross, 640 F.2d 1051, 1055 (9th Cir. 1981). The court recognized that the government
exercised a certain degree of control over the Red Cross, but held that it was not sufficient to transform that
organization into an agency.

The government has unsuccessfully attempted to argue that a cabinet level official, or a separate unit
within an agency, is not an agency for FOIA purposes when functioning "in a purely advisory capacity to the
President." Ryan v. Dept. of Justice, 617 F.2d 781, 787 (D.C. Cir. 1980). In that case the court held that
the Attorney General was still part of the Department of Justice (and thus part of an agency) when advising
the President on judgeship nominees. "Once a unit is found to be an agency, this determination will not vary
according to the specific function in each individual case." Id. at 788.

In Crooker v. Office of the Pardon Attorney, 614 F.2d 825 (2d Cir. 1980), the court held that this Office
was an agency despite the fact that its "sole function is to advise and assist the President." It rejected the
argument that the Office was not an agency because the language from the Conference Report of the 1974
Amendments (reprinted above) applies only to "units in the Executive Office," while the Pardon Attorney is
a part of the Department of Justice.

As a final point, it should be noted that Congress and the federal courts are expressly excluded from the
definition of agency in 5 U.S.C. §551(1), and there is nothing in the expanded definition in Section (f) which
encompasses them; thus, they are not subject to the FOIA.

The 1996 Amendments added the definition of "record," but it does not appear to have added anything
to existing practice.